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Reviews of judgments

Every Issue

High Court

Whether implied power to remit matters

In MZXOT v Minister for Immigration and Citizenship [2008] HCA 28 (18 June 2008) the High Court concluded that it had no implied power to remit proceedings and could only remit as provided by statute. It decided that provisions of the Migration Act that prevented the High Court remitting certain migration matters were valid. The Court observed that the provisions were valid on the basis that there was no evidence this result would affect the operation of the Court. Answers in case stated answered accordingly.

Special leave revoked

In Fergusson v Latham [2008] HCA 24 (20 May 2008) and Collins v Tabart [2008] HCA 23 (16 April 2008) the High Court revoked the grant of special leave in actions in negligence/running down matters.


GST – supply of goods or services – forfeited deposit on failure of purchaser to complete

In C of T v Reliance Carpet Co Pty Ltd [2008] HCA 22 (22 May 2008) the High Court in a

joint judgment concluded that on the forfeiture to the taxpayer/vendor of the purchaser’s deposit on the purchaser failing to complete the contract, the “supply” repre sented by the making of the sale contract became a taxable supply: Gleeson CJ; Gummow, Heydon, Crennan, Kiefel JJ. Appeal allowed.


Sham transactions

In Raftland Pty Ltd v C of T [2008] HCA 21 (22 May 2008) the High Court considered whether the trust arrangements in question were a sham for the purposes of ss99A and 100A of the ITAA.


Trespass – police officers remaining on property when asked to leave

In Kuru v NSW [2008] HCA 26 (12 June 2008) police were called to a domestic incident between the appellant and a female at the appellant’s dwelling. By the time police arrived the female had departed and the incident had concluded. After the police had a look around the premises they were asked to leave but did not. A further incident occurred between the appellant and the police and the appellant was briefly detained. The appellant succeeded at trial in an action for trespass to land, trespass to the person and false imprisonment. The Court of Appeal of NSW reversed this. The appellant’s appeal to the High Court was allowed by majority: Gleeson CJ, Gummow, Kirby and Hayne JJ jointly; contra Heydon J. The majority concluded there was no rule of the common law or statute that justified the continued presence of police at the time of the altercation with the appellant. Appeal allowed.

Unjust enrichment

In Lumbers v W Cook Builders Pty Ltd [2008]

HCA 27 (18 June 2008) the appellant building owners entered into a contract with a builder to build a residence in Adelaide. The builder engaged a sub-contractor (the respondent) who did most of the work. The sub-contractor was not paid and sued the owners for unjust enrichment and the builder for breach of contract. The action against the builder was stayed on an order for security for costs not being complied with. The primary judge found the sub-contractor failed in its claim against the owners for unjust enrichment. This was reversed by the Court of Appeal of SA. An appeal by the owners to the High Court was allowed: Gleeson CJ; Gummow, Hayne, Crennan and Kiefel JJ. The Court considered the elements in an action for unjust enrichment. Appeal allowed.

THOMAS HURLEY is a Victorian barrister. The full version of these judgments can be found at

Federal Court Judgments

Administrative law

Application in Australia of Chevron doctrine

In MIC v Yucesan [2008] FCAFC 11; (20 June 2008) a Full Court reviewed High Court authority establishing that the American Chevron doctrine (Chevron USA Inc v Natural Resources Defence Council Inc 467 US 837 (1984)) whereby some judicial decisions defer to administrative decisions of a policy nature did not apply in Australia. The Full Court concluded the FMC had erred in accepting the RRT was correct in concluding that parties to a marriage could have “met” without being physically in each other’s presence.

Administrative law

Error – finding unsupported by evidence

In Wecker v Secretary Dept of Education, Science and Training [2008] FCAFC 108 (19 June 2008) a Full Court considered when a court reviewing for error of law would set aside a decision of a tribunal which gave reasons that were unsupported by evidence of primary facts.

Constitutional law

Tax on property of state – state super funds

In Clarke v C of T [2008] FCAFC 106 (13 June 2008) a Full Court considered whether amounts paid under state superannuation schemes constituted surchargeable contributions under commonwealth legislation and whether this was a tax on property of a state contrary to the Constitution s114.


Terms – implied term of confidence – when

implied term a restraint of trade

In Krueger Transport Equipment v Glen Cameron Storage [2008] FCA 803 (30 May 2008)

Gordon J considered when confidentiality would be implied into agreements without creating an unreason able restraint of trade and what level of novelty in a new idea was required before it would be protected as a confidential matter.


Requirement that assistance animals be

approved prior to entry

In Queensland v Che Forrest [2008] FCAFC 96 (6 June 2008) a Full Court concluded the primary judge had erred in finding a requirement of a hospital that assistance animals be approved before attending at the hospital was not reasonable and discriminatory contrary to ss6 and 9 of the Disability Discrimination Act 1992 (Cth). Appeal allowed.


Tribunals – delay in processing claim

In SZIIF v MIC [2008] FCA 913 (19 June 2008) Weinberg J found the RRT erred by failing to consider that alleged inconsistencies between the statements made by the applicant to the delegate and the RRT had occurred over a period of years and that this failure amounted to jurisdictional error.


Visas – refugees – erroneous regard of RRT

to conduct in Australia

In SZJGV v MIC [2008] FCAFC 105 (19 June 2008) a Full Court concluded the RRT made an error of law that was a jurisdictional error by concluding the applicant’s conduct in Australia did not satisfy s91R(3) of the Migration Act without making findings first as to what that conduct was. Appeal from decision of the FMC allowed.

Trade practices

Misleading conduct – “safe harbour” for media comment

In Bond v Barry [2008] FCAFC 115 (23 June 2008) a Full Court considered that s65A(1) (a)(I) of the Trade Practices Act did provide a defence to the allegation that the subject email by an investigative journalist about the appellant to a media enterprise was misleading and deceptive conduct contrary to that Act.

THOMAS HURLEY is a Victorian barrister. The full version of these judgments can be found at

Supreme Court Judgments

Procedural fairness where reference to the Legal Services Commissioner

Byrne v Marles & Anor [2008] VSCA 78 (unreported, 16 May 2008, No 7520/2006, Nettle, Dodds-Streeton JJA and Coghlan AJA).

This appeal was concerned with the question whether, where a decision-making process involves different steps or stages before a decision is made, it is sufficient that “the decision making process, viewed in its entirety, entails procedural fairness”.1

A complaint had been made against a solicitor. The complaint had been referred by the Law Institute of Victoria (LIV) to the Legal Services Commissioner who had determined to classify the complaint as a disciplinary complaint to be further investigated by the LIV. It was argued by the solicitor that he ought to have been heard by the Commissioner before the complaint was so categorised.

Reference was made to the decision of the Appeal Division in Victoria in Cornall v AB (A Solicitor), a case decided under the Legal Profession Act 1958 (Vic) where the Court, in relation to the earlier legislation, said in relation to a determination by the Secretary of the LIV to refer a matter to the registrar of the Solicitors’ Board that:

“Where the function of going forward with the prosecution or charge does not involve more than satisfaction as to facts sufficient to form a prima facie case, there is little practical merit in providing to a person so charge [sic] a further opportunity to make submission or adduce facts to an investigator who is not essentially the fact-finding tribunal”.2

Net t le JA delivering the principal judgment of the Court of Appeal, while expressing doubt as to the approach of the Appeal Division in Cornall v AB in light of earlier cases including Ainworth,3 chose to distinguish it. His Honour said:

“On the other hand, there is no reason to doubt the conclusion in Cornall v AB that the requirements of natural justice may be satisfied if ‘the decision-making process, viewed in its entirety, entails procedural fairness’. Plainly, there was a distinction between the facts in Cornall v AB and those in Ainsworth. As Aronson puts it, ‘the very purpose of the investigation [in Cornall v AB] was to determine whether there should be a further hearing or some other action and a decision adverse to the respondent would necessarily be followed by a hearing’. Further, as the court in Cornall v AB were careful to observe, the only decision of the secretary there in question was a decision to refer the matter for quasi-judicial determination. Furthermore, as was said, it was easy to see that in considering the whole process whereby matters were referred to the Registrar of The Solicitors’ Board, there was intended to be an ample opportunity for the solicitor to present his case at the hearings prescribed by the legislature. Other things being equal, therefore, I would respectfully follow Cornall v AB in the determination of this case”.4

[Endnotes omitted.]

Because the Commissioner was bound under the legislation in Byrne v Marles & Anor to give notice to the solicitor of a complaint as soon as practicable after receipt and to make a preliminary decision whether to dismiss it summarily before proceeding further, the statute evinced an intention that the Commissioner should take into account anything that the solicitor might want to submit.5

It was argued for the respondents that to require the Commissioner to accord natural justice in relation to all complaints referred to her in respect of solicitors would frustrate the handling of such complaints, including through delay. Nettle JA said of this:

“There is some force in those submissions. As the court observed in Cornall v AB, the volume of complaints likely to be made against solicitors makes it necessary to keep in mind the efficiency of ‘the administrative process’. Correspondingly, the likelihood of detrimental effects on efficiency of the administrative process militates against a conclusion that the proper stage for affording procedural fairness is at the stage when the Commissioner first receives a complaint and so before making a decision to investigate it as a disciplinary complaint. But as the court in Cornall v AB also observed, ‘every statute must be looked at individually and there may be circumstances in which the language of a statute will require, for certain special reasons, some further opportunity to be heard’. One may also doubt that recognition of the solicitor’s right to be heard at that stage would result in the sorts of inefficiencies which the Commissioner fears.

The content of natural justice is variable according to the circumstances of the case and, in the ordinary case, it should not require much more than the Commissioner inviting the solicitor to respond to the complaint and specifying a relatively short period of time (perhaps no more than a week after giving notice) in which any such response should be provided. In other kinds of cases, for example in cases of real urgency, or where the giving of notice would likely lead to the destruction of evidence or something of that nature, the content of natural justice might be reduced; in some cases perhaps even to the point of effectively abrogating it altogether. All in all, there should be few cases in which there is much of a problem. In my view the appellant did have a right to be heard by the Commissioner before she determined to treat the complaint as a disciplinary complaint and to refer it to the Institute for investigation. Consequently, I consider that the Commissioner’s failure to accord the appellant an opportunity to be heard at that point was a denial of natural justice”.6

The decision to refer the complaint to the LIV for investigation was a breach of the solicitor’s right to be heard. While the indications were that the Commissioner had good reason to regard the complaint as a disciplinary complaint, the solicitor should be given the opportunity to persuade the Commissioner otherwise. The appeal by the solicitor was upheld.

PROFESSOR GREG REINHARDT is executive director of the Australasian Institute of Judicial Administration and a member of the Faculty of Law at Monash University. The full version of this judgment can be found at

1. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 578.
2. [1995] 1 VR 372, 376.
3. Note 1 above.
4. [2008] VSCA 78 at [82].
5. At [85].
6. At [89]-[90]. Endnotes omitted.


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